United States v. Fredy Reyes , 772 F.3d 1152 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50086
Plaintiff-Appellee,
D.C. No.
v. 2:12-cr-00020-
SJO
FREDY OSWALDO GAMEZ REYES,
AKA Luis Enrique Aguirre, AKA
Douglas Omar Castillo, AKA OPINION
Chapo, AKA Freddy Oswaldo
Gamez, AKA Freddy Oswaldo
Gamez-Reyes, AKA Carlos Lopez,
AKA Carlos Ramirez,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted
June 3, 2014—Pasadena, California
Filed November 21, 2014
Before: Stephen Reinhardt, Raymond C. Fisher,
and Mary H. Murguia, Circuit Judges.
Opinion by Judge Murguia
2 UNITED STATES V. GAMEZ REYES
SUMMARY*
Criminal Law
The panel affirmed a sentence for harboring and
concealing illegal aliens for financial gain.
The panel held that the district court applied the proper
legal standard and did not clearly err in applying an
enhancement, pursuant to U.S.S.G. § 2L1.1(b)(4), for
harboring unaccompanied minor aliens, when the district
court looked at the particular circumstances of this alien
smuggling ring and the defendant’s role within it to conclude
that it was reasonably foreseeable to the defendant that
unaccompanied minors would be present. Rejecting the
defendant’s contention that the district court’s finding did not
comport with due process, the panel held that the undisputed
facts upon which the district court relied bear sufficient
indicia of reliability.
Upholding the district court’s imposition of an
enhancement pursuant to U.S.S.G. § 2L1.1(b)(8), the panel
held that the district court did not clearly err in finding that
this particular smuggling organization detained aliens both in
connection with a demand for payment and through coercion
or threat, and in finding that such detention was reasonably
foreseeable to the defendant.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. GAMEZ REYES 3
COUNSEL
Marisa Conroy (argued), Law Office of Marisa L. D. Conroy,
Encinitas, California; Michelle Anderson Barth, Burlington,
Vermont, for Defendant-Appellant.
Kerry C. O’Neill (argued) and David M. Herzog, Assistant
United States Attorneys; Robert E. Dugdale, Assistant United
States Attorney, Los Angeles, California, for Plaintiff-
Appellee.
OPINION
MURGUIA, Circuit Judge:
Fredy Oswaldo Gamez Reyes pleaded guilty to six counts
of harboring and concealing illegal aliens for financial gain,
in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and (a)(1)(B)(i).1
The district court imposed a within-guidelines sentence of
ninety-six months’ imprisonment and a three-year term of
supervised release. On appeal, Gamez Reyes claims that the
district court erred in applying a two-level sentencing
enhancement, pursuant to U.S.S.G. § 2L1.1(b)(4), for
harboring unaccompanied minor aliens, and a two-level
sentencing enhancement, pursuant to U.S.S.G.
§ 2L1.1(b)(8)(A), for involuntarily detaining aliens through
coercion or threat or in connection with a demand for
1
We use the term “illegal aliens” because that is the terminology used
in the indictment, plea agreement, and judgment of conviction.
4 UNITED STATES V. GAMEZ REYES
payment.2 We have jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a), and we affirm.
I. BACKGROUND
Between May 2008 and March 2011, Gamez Reyes
participated in a large-scale alien smuggling operation that
smuggled approximately 2,000 aliens annually into the
United States and harbored them in stash houses in southern
California until they paid a fee. Typically, the aliens paid a
portion of the smuggling fee in their country of origin, and
after they arrived in the United States their families paid the
remainder of the fee on the aliens’ behalf. Gamez Reyes was
in charge of obtaining and renting the stash houses,
overseeing the maintenance and operation of the stash houses,
and collecting smuggling fees from family members in
exchange for the release of the aliens. Gamez Reyes worked
directly with the leader of the smuggling ring, known as
“Honda.” Under Honda’s direction, Gamez Reyes retrieved
smuggling fees from Western Union or MoneyGram and
delivered the money to Honda in person; in exchange, Honda
gave Gamez Reyes between fifty and one-hundred dollars per
transaction. Gamez Reyes also personally collected fees from
family members or directed other members of the smuggling
ring to pick up the fees.
Immigration and Customs Enforcement (“ICE”) agents
began investigating the alien smuggling ring on July 27,
2009, after two female aliens inside one of the ring’s stash
houses in Compton, California, handed a note to children
standing outside the house’s barred window. Written in
2
We address Gamez Reyes’s other claims in an unpublished
memorandum disposition filed concurrently with this opinion.
UNITED STATES V. GAMEZ REYES 5
Spanish on a piece of toilet paper, the note read, “Do me a
favor and call this number. Don’t call the police please! We
are immigrants and we cannot leave. May God grant you
blessings.” The women later explained to ICE agents that
they wrote the note because one of the smugglers acting as a
guard at the Compton house demanded an additional fee.
When they were unable to come up with the extra money, the
smuggler, known as Pablo and later determined to be a close
associate of Gamez Reyes, threatened to kill them. The
children gave the note to a neighbor, who contacted the
Compton house owner’s daughter, who alerted the owner.
Concerned, the owner called Gamez Reyes, who assured the
owner no one was being held captive. Nonetheless, the
owner notified Gamez Reyes that she had called the police
and that officers were on their way.
Later that day, ICE agents arrived at the Compton stash
house, followed by Los Angeles police officers and sheriff’s
deputies. Upon the agents’ arrival, numerous individuals ran
out of the house, and a dog charged at the officers. The
officers shot the dog and ultimately arrested eighteen aliens
from the stash house and one member of the alien smuggling
operation. Among the eighteen arrested aliens were two
young brothers from Ecuador, later determined to be thirteen
and fifteen years old. Local residents in the Compton
neighborhood discovered the two boys hiding in an
abandoned house shortly after the raid and brought them to
the ICE agents. During an interview with ICE agents the day
after the raid, one of the boys explained that their father
resided in Ecuador, that their undocumented mother lived in
New York, and that he and his brother traveled to the United
States with their cousin. An attempt to reach the boys’
mother by phone was unsuccessful.
6 UNITED STATES V. GAMEZ REYES
Police later discovered that, after the raid on the Compton
stash house, Gamez Reyes signed a lease for a new stash
house in Lynwood, California. Between January 2010 and
March 2011, ICE agents executed search warrants on the
Lynwood stash house and two other houses in southern
California, after receiving phone calls from concerned
relatives that smuggled aliens were being held against their
will inside the houses. Agents found thirty-seven, thirty-five,
and seven smuggled aliens in stash houses located in
Lynwood, Baldwin Park, and Hesperia, California,
respectively. At each location, the agents arrested several
members of the smuggling ring acting as guards, and they
recovered smuggling ledgers, known as “pollo books,” with
several hundred names of smuggled aliens and payment
information. Gamez Reyes’s name, or his moniker, “Chapo,”
appeared in connection with 142 distinct entries in the
smuggling ledgers. His name was also mentioned in
MoneyGram records and interviews with the aliens. Gamez
Reyes was arrested at his home in Compton, California, on
March 18, 2011, pursuant to a federal arrest warrant for an
unrelated illegal reentry offense.
Gamez Reyes was charged in a seven-count indictment.
Counts one through six charged Gamez Reyes with harboring
and concealing illegal aliens for financial gain, in violation of
8 U.S.C. § 1324(a)(1)(A)(iii) and (a)(1)(B)(i). Count seven
charged Gamez Reyes with concealing, harboring, and
shielding an alien from detection, during and in relation to
which he caused serious bodily injury to the alien.3 After
3
This count stemmed from allegations that Gamez Reyes sexually
assaulted two female aliens while they were held at the Compton stash
house. Gamez Reyes disputed these claims, and after an investigation, the
government was unable to conclude any sexual assaults took place. One
UNITED STATES V. GAMEZ REYES 7
entering into plea negotiations with the government, Gamez
Reyes pleaded guilty to counts one through six, and the
government dismissed count seven. The government agreed
not to recommend a term of imprisonment higher than the
low end of the applicable Sentencing Guidelines range, and
the parties agreed not to seek any other specific offense
characteristics, adjustments, or departures. The plea
agreement acknowledged, however, that the district court was
not a party to the agreement, that it could determine the
appropriate sentencing range, and that it was not bound by
any of the parties’ recommendations.4 See Fed. R. Crim. P.
11(c)(1)(B). Gamez Reyes further confirmed at his change-
of-plea hearing that he understood that the plea agreement did
not bind the district court and that the district court retained
discretion to impose a sentence it deemed appropriate.
After Gamez Reyes pleaded guilty, the United States
Probation Office prepared a presentence report (“PSR”). The
of the women was unable to identify Gamez Reyes in a photographic
lineup as her assailant. The other woman claimed that the alleged assault
took place inside the stash house but Gamez Reyes claimed it was
consensual sex at a hotel. Gamez Reyes passed a polygraph test, and the
government obtained a hotel registration consistent with Gamez Reyes’s
account. After lengthy discussion at sentencing, the district court
ultimately credited Gamez Reyes’s claim that he engaged in sexual
conduct with the alien at a hotel, but the court did not credit his claim that
the sexual conduct was a voluntary act on behalf of the alien. The district
court did not rely on the sexual assault allegations when it imposed the
enhancements discussed in this appeal.
4
By contrast, a plea agreement executed pursuant to Federal Rule of
Criminal Procedure 11(c)(1)(C) provides that where the parties “agree that
a specific sentence . . . is the appropriate disposition of the case . . . such
a recommendation or request binds the court once the court accepts the
plea agreement.”
8 UNITED STATES V. GAMEZ REYES
PSR recommended a two-level enhancement for smuggling,
transporting, or harboring an unaccompanied minor. This
recommendation was based on evidence that agents had
apprehended the thirteen- and fifteen-year-old minors during
the raid of the Compton stash house and evidence that the
minors were unaccompanied by a parent or grandparent. The
PSR also recommended a two-level enhancement for
involuntarily detaining an alien through coercion or threat, or
in connection with a demand for payment. This
recommendation was based on (1) evidence that the two
women who threw the note out of the window at the Compton
stash house were detained in the stash house after smugglers
raised their fee; (2) indications in the note itself that
immigrants were being held against their will in the stash
house; and (3) the fact that Gamez Reyes admitted to
overseeing the stash houses and collecting fees. In
recommending these enhancements, the PSR applied the
“Relevant Conduct” guideline at U.S.S.G. § 1B1.3(a), which
holds a defendant accountable for reasonably foreseeable
actions or omissions of others committed in furtherance of a
jointly undertaken criminal activity.
At sentencing, Gamez Reyes objected to the
enhancements, and, consistent with the plea agreement, the
government also argued against imposing the enhancements.5
With respect to the unaccompanied minor enhancement, the
5
The government argues on appeal that the district court did not clearly
err in applying the enhancements. In the plea agreement, the parties
agreed that they both maintained the right to “argue on appeal and
collateral review that the Court’s Sentencing Guidelines calculations and
the sentence it chooses to impose are not error.” See United States v.
Rodriguez-Castro, 641 F.3d 1189, 1192 (9th Cir. 2011) (government did
not breach plea agreement by arguing on appeal in support of sentence
imposed by district court).
UNITED STATES V. GAMEZ REYES 9
government argued that there was little evidence that the age
of the two minor boys or their relationship to the other aliens
in the house was reasonably foreseeable to Gamez Reyes, and
noted that this particular alien smuggling ring did not focus
on smuggling minors into the country. But the government
also conceded that none of the aliens recovered from the
Compton stash house shared a last name with the two boys,
and that the organization’s only requirement for smuggling an
alien was the alien’s ability to pay the fee. With respect to
the involuntary detention enhancement, the government
conceded that some aliens’ fees were increased once they
arrived in the United States, but argued that there was little
evidence Gamez Reyes knew or reasonably should have
known about the increased fees. The government also argued
that it is a normal incident of smuggling operations that the
aliens are held in custody until they pay the agreed-upon fee.
After listening to arguments from both parties in two lengthy
hearings, and after reviewing the PSR, sentencing
memoranda, and ICE investigative reports on which the
probation officer relied, the district court denied Gamez
Reyes’s objections, imposed the two disputed enhancements
and a third enhancement for an aggravated role in the offense,
and sentenced Gamez Reyes to ninety-six months’
imprisonment, at the top of the Sentencing Guidelines range.
II. DISCUSSION
A. Standard of Review
We review de novo a district court’s interpretation of the
Sentencing Guidelines, and we review for clear error its
factual findings. See United States v. Rivera-Alonzo,
584 F.3d 829, 836 (9th Cir. 2009). Thus, we review for clear
error the district court’s finding that it was reasonably
10 UNITED STATES V. GAMEZ REYES
foreseeable to Gamez Reyes that the ring would smuggle
unaccompanied minors and involuntarily detain aliens in the
stash houses.6 Under the clearly erroneous standard, “[s]o
long as the district court’s view of the evidence is plausible
in light of the record viewed in its entirety, it cannot be
clearly erroneous, even if the reviewing court would have
weighed the evidence differently had it sat as the trier of
fact.” United States v. Gust, 405 F.3d 797, 799 (9th Cir.
2005) (citation and internal quotation marks omitted). We
have previously identified an intracircuit split on whether the
proper standard of review of the application of the Sentencing
Guidelines to the facts is de novo or abuse of discretion, see
United States v. Tanke, 743 F.3d 1296, 1306 (9th Cir. 2014),
but we need not resolve the issue here because our decision
would be the same under either standard of review. See id.
B. Unaccompanied Minor Enhancement
The Sentencing Guidelines provide for a two-level
enhancement “[i]f the defendant smuggled, transported, or
harbored a minor who was unaccompanied by the minor’s
parent or grandparent.” U.S.S.G. § 2L1.1(b)(4). A minor is
defined as “an individual who had not attained the age of 16
years.” Id., cmt. n.1. As in the PSR, when the district court
imposed this enhancement it relied on the “Relevant
6
The government argues that the plain error standard of review should
apply with respect to Gamez Reyes’s challenge to the unaccompanied
minor enhancement, because Gamez Reyes raises a new legal argument
in his opening brief on appeal that he did not raise before the district court.
We reject this contention. See Thompson v. Runnels, 705 F.3d 1089, 1098
(9th Cir. 2013) (“[W]e may consider new legal arguments raised by the
parties relating to claims previously raised in the litigation.”); see also
United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004)
(“[I]t is claims that are deemed waived or forfeited, not arguments.”).
UNITED STATES V. GAMEZ REYES 11
Conduct” guideline, U.S.S.G. § 1B1.3(a)(1)(B). Section
1B1.3(a)(1)(B) provides that in the case of a jointly
undertaken criminal activity, whether or not it is charged as
conspiracy, a particular special offense characteristic should
be determined based on “all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken
criminal activity, that occurred during the commission of the
offense of conviction, in preparation for that offense, or in the
course of attempting to avoid detection or responsibility for
that offense.” On appeal, Gamez Reyes does not dispute that
unaccompanied minors were found at the Compton stash
house. Instead, he disputes whether it was reasonably
foreseeable to him that the unaccompanied minors would be
there. In particular, he contends that, rather than applying the
“reasonably foreseeable” standard, the district court
effectively applied a “strict liability” standard, because it
relied chiefly upon the sheer volume of aliens smuggled
annually to conclude that it was reasonably foreseeable
unaccompanied minors would also be smuggled.
We conclude that the district court applied the proper
legal standard and did not clearly err in imposing the
unaccompanied minor enhancement, despite the
government’s argument at sentencing that it was not
reasonably foreseeable to Gamez Reyes that unaccompanied
minors would be smuggled. The district court relied in part
on the large size of this alien smuggling ring to find that “it
was reasonably foreseeable for [Gamez Reyes] to have
known that the minors were [at the Compton location].” But
the district court also relied on Gamez Reyes’s familiarity
with the circumstances of the Compton stash house: he
located and leased the house, he went to the house a number
of times, and there were fewer aliens held in that stash house
compared to the other houses. The district court also
12 UNITED STATES V. GAMEZ REYES
considered that this particular smuggling organization had no
system in place to ensure that any minor aliens were
accompanied; instead, all that was required was payment of
the smuggling fee. Therefore, the district court did not apply
a “strict liability” standard. It properly looked at the
particular circumstances of this alien smuggling ring and
Gamez Reyes’s role within it to conclude that it was
reasonably foreseeable to Gamez Reyes that unaccompanied
minors would be present.
Nonetheless, Gamez Reyes insists that “it was not an
obvious fact” that the two minor brothers were traveling
unaccompanied. But it did not need to be “obvious” to
Gamez Reyes that unaccompanied minors were being held in
the Compton house, only “reasonably foreseeable.” See
U.S.S.G. § 1B1.3(a)(1)(B). The Guidelines provide an
instructive and analogous example of when a defendant can
be held accountable for the conduct of others:
Defendant P is a street-level drug dealer who
knows of other street-level drug dealers in the
same geographic area who sell the same type
of drug as he sells. Defendant P and the other
dealers share a common source of supply, but
otherwise operate independently. Defendant P
is not accountable for the quantities of drugs
sold by the other street-level drug dealers
because he is not engaged in a jointly
undertaken criminal activity with them. In
contrast, Defendant Q, another street-level
drug dealer, pools his resources and profits
with four other street-level drug dealers.
Defendant Q is engaged in a jointly
undertaken criminal activity and, therefore, he
UNITED STATES V. GAMEZ REYES 13
is accountable under subsection (a)(1)(B) for
the quantities of drugs sold by the four other
dealers during the course of his joint
undertaking with them because those sales
were in furtherance of the jointly undertaken
criminal activity and reasonably foreseeable
in connection with that criminal activity.
U.S.S.G. § 1B1.3 cmt. n.2(c)(6); see also Stinson v. United
States, 508 U.S. 36, 38 (1993) (“[C]ommentary in the
Guidelines Manual that interprets or explains a guideline is
authoritative unless it violates the Constitution or a federal
statute, or is inconsistent with, or a plainly erroneous reading
of, that guideline.”). Gamez Reyes admitted that he collected
the smuggling fees, that he processed the fees through
MoneyGram and Western Union, and that he was paid in cash
“from the organization in exchange for his participation in the
smuggling organization.” As the district court noted, he was
a frequent visitor to the Compton stash house and he was in
frequent contact with the head of the organization and the
guards stationed at the stash houses. Like “Defendant Q” in
the example above, Gamez Reyes pooled his resources and
profits with the other members of the smuggling ring.
Coupled with the size of this organization, Gamez Reyes’s
significant role within it, the lack of any screening
mechanism to prevent unaccompanied minors, and Gamez
Reyes’s intimate knowledge of the circumstances in the
Compton stash house, it was plausible for the district court to
conclude that Gamez Reyes could reasonably have foreseen
that other members of this smuggling ring might smuggle
unaccompanied minors, either by act or omission.
Accordingly, the district court did not clearly err by imposing
this enhancement. See, e.g., United States v. Dallman,
533 F.3d 755, 760 (9th Cir. 2008) (district court did not err in
14 UNITED STATES V. GAMEZ REYES
holding defendant accountable for the aggregate amount of
marijuana carried by all coconspirators in attempt to import
marijuana into the United States because coconspirators
coordinated importation efforts, aided each other in crossing
a barbed wire fence at the border, and together attempted to
hide from Border Patrol agents); United States v. Lavender,
224 F.3d 939, 941–42 (9th Cir. 2000) (district court’s finding
that it was reasonably foreseeable coconspirator would carry
and use a dangerous weapon during a bank robbery was not
clearly erroneous); United States v. Willis, 899 F.2d 873, 875
(9th Cir. 1990) (district court properly held wife accountable
for husband’s possession of a firearm in a narcotics
trafficking organization because the husband’s gun was
plainly visible and coconspirators were few in number and
knew each other well, such that the court could infer that each
participant knew the others’ “methods of operation”); see also
United States v. Rodriguez, 525 F. App’x 268, 270 (5th Cir.
2013) (per curiam)(district court did not err in finding
reasonably foreseeable that a minor alien would be among
those harbored where smuggling organization was not
restricted by age).
Finally, and contrary to Gamez Reyes’s contention, the
district court’s finding comports with due process. To prevail
on a due process claim, Gamez Reyes must demonstrate that
his sentence was based on false or unreliable information.
See United States v. Vanderwerfhorst, 576 F.3d 929, 935–36
(9th Cir. 2009). Challenged information is deemed false or
unreliable if it lacks “some minimal indicium of reliability
beyond mere allegation.” Id. (internal quotation marks
omitted). Gamez Reyes has not met this burden. The district
court relied on Gamez Reyes’s own admissions that the
organization smuggled in approximately 2,000 aliens
annually, that he rented the Compton house where the two
UNITED STATES V. GAMEZ REYES 15
minor boys were held, that he oversaw the maintenance and
operation of the stash houses, and that he personally collected
smuggling fees. The district court also fairly relied on both
the PSR and the underlying ICE investigative reports
submitted by the probation officer. See United States v.
Burns, 894 F.2d 334, 336–37 (9th Cir. 1990) (no error in
considering Secret Service investigative report at sentencing).
In particular, the district court noted that those investigative
reports included information that Gamez Reyes came to the
Compton stash house on a regular basis and that, on the day
of the raid, Gamez Reyes arrived at the Compton house to
retrieve and drive away with a guard named Pablo
immediately before officers arrived. Additionally, the district
court relied on the juvenile’s statement to the authorities that
he and his brother were not accompanied by their parents.7
These facts, which Gamez Reyes does not dispute, bear
sufficient indicia of reliability, and the district court did not
err in relying on them to impose the enhancement.
C. Involuntary Detention Enhancement
The Guidelines provide for a two-level enhancement “[i]f
an alien was involuntarily detained through coercion or
threat, or in connection with a demand for payment, (i) after
the alien was smuggled into the United States; or (ii) while
the alien was transported or harbored in the United States.”
U.S.S.G. § 2L1.1(b)(8)(A). The district court found that
aliens were involuntarily detained both in connection with a
7
Gamez Reyes does not challenge the credibility of that statement on
appeal. He did challenge the statement before the district court, but his
conclusory argument that “juveniles can easily lie for a wide variety of
reasons,” is not persuasive and does not demonstrate that this evidence
was false or unreliable.
16 UNITED STATES V. GAMEZ REYES
demand for payment and through coercion or threat. As with
the unaccompanied minor enhancement, the district court
applied the “reasonably foreseeable” test articulated in
section 1B1.3(a)(1)(B) to impose the involuntary detention
enhancement.
The district court did not clearly err in finding that this
particular smuggling organization detained aliens both in
connection with a demand for payment and through coercion
or threat. The investigation into this smuggling organization
began after two women threw a note out of a barred window
claiming they were being held captive. It is undisputed that
the Compton stash house had bars on the windows, guards on
watch, locks on the doors, an aggressive pitbull, and an
unloaded rifle in plain sight. In their interviews with ICE
agents, the aliens provided further information about the
Compton stash house conditions. One alien claimed that a
guard sat next to the door to prevent the aliens from leaving
and that he also controlled access to the bathroom. One of
the women who threw the note out of the window claimed
that men arriving at the house were instructed to remove their
shoes, shirts, and belts; when one man inquired why, a guard
beat him. She also described a guard restricting use of the
bathroom and shower, and she observed the guard named
Pablo walk around with a pistol. Both of the women who
threw out the note stated that Pablo doubled their smuggling
fee once they arrived and told them that if they tried to escape
they would be killed. An alien who was held for four months
at the Lynwood stash house told ICE agents that he witnessed
a guard threaten female aliens that if they wanted a shower,
blankets, or a jacket, they had to have sex with the guard. He
also witnessed guards carrying guns, and when he attempted
to escape, one of the guards caught him, threw him in a
closet, and punched him in the face.
UNITED STATES V. GAMEZ REYES 17
As our sister circuits have recognized, these are coercive
and threatening conditions. See, e.g., United States v.
Alapizco-Valenzuela, 546 F.3d 1208, 1217–19 (10th Cir.
2008) (involuntary detention enhancement properly applied
where aliens forced at gunpoint to give up their personal
belongings and phone family members and friends for
additional money to pay the smugglers, had to remain hidden
in the stash houses without food or drink, were not free to
leave, and feared for their lives and physical safety); United
States v. DeLeon, 484 F. App’x 920, 934 (5th Cir. 2012) (per
curiam) (exits of stash house were boarded up and/or
padlocked from the outside to prevent escape); United States
v. Gonzalez-Mendoza, 401 F. App’x 997, 998 (5th Cir. 2010)
(per curiam) (aliens detained in stash houses under armed
guard, smugglers demanded additional payments, and
firearms located in stash houses).
Further, the district court did not clearly err, despite the
government’s recommendation against applying an
involuntary detention enhancement, in finding that it was
reasonably foreseeable to Gamez Reyes that the organization
would detain aliens through coercion or threat or in
connection with a demand for payment. Gamez Reyes was a
frequent visitor to the Compton house, where he would have
witnessed the aliens without shoes, the bars on the windows,
guards keeping watch, the aggressive dog, and a gun in plain
sight. He was directly responsible for securing the stash
houses, was in constant contact with the guards, and
significantly, was in charge of collecting the smuggling fees.
The evidence shows that Gamez Reyes was in particularly
close contact with the guard named Pablo, who threateningly
demanded additional smuggling fees. Even if Gamez Reyes
did not personally threaten any aliens, demand additional
payments, or condone the guards’ demands of sexual favors
18 UNITED STATES V. GAMEZ REYES
from female aliens in return for bathroom privileges, it was
reasonably foreseeable to him that others in the smuggling
ring would use these threatening tactics to detain the aliens.
See U.S.S.G. § 1B1.3 cmt. n.2(c)(6); see also Alapizco-
Valenzuela, 546 F.3d at 1219 (district court reasonably
inferred defendant knew aliens were being held against their
will when he arrived at a stash house and saw aliens without
shoes or personal belongings and armed guards keeping
watch over them). Therefore, the district court did not err in
imposing the involuntary detention enhancement. See, e.g.,
United States v. Miguel, 368 F.3d 1150, 1156 (9th Cir. 2004)
(district court properly found it reasonably foreseeable that
child transported through desert in alien smuggling
organization would sustain bodily injury); United States v. Li,
206 F.3d 78, 86 (1st Cir. 2000) (district court did not err in
finding that “shoddy conditions, meager provisions, and
inadequate safety measures” on ship smuggling Chinese
nationals into United States were reasonably foreseeable to
defendants, even those defendants not present on the ship).
III. CONCLUSION
The district court did not clearly err in applying the
two-level unaccompanied minor enhancement under U.S.S.G.
§ 2L1.1(b)(4) or the two-level involuntary detention
enhancement under U.S.S.G. § 2L1.1(b)(8)(A), because it
was not bound by the plea agreement to accept the parties’
recommendations, it conducted a careful, thorough review of
all the relevant information in the plea agreement, PSR, and
underlying ICE investigation reports, and it properly applied
UNITED STATES V. GAMEZ REYES 19
the reasonably foreseeable standard dictated by U.S.S.G.
§ 1B1.3(a)(1)(B) to those facts. There was no error, clear or
otherwise. Accordingly, we affirm the sentence.
AFFIRMED.